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Australian Year Book of International Law |
Richard Garnett[*]
The practice of torture remains one of the world’s most serious human rights abuses. According to Amnesty International figures, although by 1984 more than 112 countries had expressly declared such acts to be illegal, torture continued to be practised in more than 100.[1]
Between 1980 and 1983 alone, Amnesty made appeals in 45 countries on behalf of 2,687 individuals who were being tortured or in danger of being tortured.[2] Torture is therefore a phenomenon which many States may condemn publicly in their international relations but privately condone as an instrument of domestic repression. This hypocritical stance has complicated legal efforts to eliminate the practice of torture or, even less ambitiously, to provide redress for its victims.
While torture is increasingly the subject of prohibition in international conventions with an ever wider range of enforcement machinery against delinquent States, there has also emerged a parallel development whereby individual victims of torture have instituted civil suits against the offending State in the domestic courts of another country. This paper considers the desirability of such domestic actions and to what extent the doctrine of State immunity acts (or should act) as an obstacle to recovery.
While torture has been frequently conducted by nations throughout history it has only been in comparatively recent times that attempts on the international plane have been made to combat the practice.
The first explicit condemnation of torture came in Article 5 of the Universal Declaration of Human Rights 1948 (UNDHR),[3] which provided that “[no] one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. The exact wording of Article 5 was replicated in Article 7 of the International Covenant on Civil and Political Rights 1966 (ICCPR).[4] Article 2 of the ICCPR requires that State parties “respect and ... ensure to all individuals within [their] territory and subject to [their] jurisdiction, the rights recognised in the ... Covenant without distinction of any kind, such as ... national ... status”. Under Article 40 of the ICCPR, the Human Rights Committee (HRC) (a body of human rights experts representative of the State parties), will receive and consider reports from parties as to the measures they have taken to give effect to their obligations under the Covenant. The reporting mechanism has enabled the HRC to open a dialogue with countries believed to be engaging in torture with a view to persuading them to end such practices. The procedure is conducted in a non-adversarial way with regard for State sovereignty which seems appropriate in such a sensitive area. The reporting process therefore operates on the “macro” level, that is, it addresses the problem of torture in general rather than seeking to remedy individual abuses.
Further and most significantly, the “Optional Protocol” to the ICCPR[5] has been created which gives to the HRC the power to receive communications from individuals alleging violations of the Covenant by a State party. This procedure, in contrast to the reporting system, operates on the “micro” level, in that its main aim is to provide redress to individuals for injury suffered. However what both procedures have in common is that they provide only for adjudication by an international body — the HRC — there is no scope for one State to assume jurisdiction over another.
The HRC has considered a number of complaints by individuals alleging torture under Article 7 of the ICCPR and has generally taken a broad view of what comes within the term, stating that it includes both the infliction of mental and physical injury.[6] In one far reaching case, the HRC found that a person who suffers anguish at the torture of one of his or her immediate relatives by a State may have a claim for violation of Article 7.[7]
The ICCPR therefore aims both to eliminate torture as a practice through diplomacy and negotiation and to provide some redress to individual victims. The great advantage of its procedures is that, because they operate on the international level, subject to the consent of States, there has been so far little offence to State sensitivity.[8] Moreover, there is wide acceptance of the ICCPR and the Optional Protocol as reflected in the fact that 138 and 92 States are currently party to each instrument respectively.[9]
In 1984 the international movement against torture received further encouragement with the conclusion of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (the CAT)[10] which came into force in 1987 and which now has 102 State parties.[11]
The key provisions of the CAT include Article 1 which broadly defines torture to include “any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted on a person, for the purpose of obtaining information, punishing him or her or intimidating or coercing him or her for any reason based on discrimination of any kind”. The acts must also have been “inflicted by or with the consent and acquiescence of a public official or a person acting in an official capacity”. Article 2 requires each Nation State to take all effective measures to prevent acts of torture on its territory. Under Article 5 of the Convention, each nation shall ensure that torture is an offence under its criminal law and shall prosecute offenders found in its territory or extradite them to other countries for prosecution. Under Article 14 each Nation State “shall ensure, in its legal system, that the victim of torture obtains redress and has an enforceable right to fair and adequate compensation”.
A Committee against Torture has also been created under the CAT. This body has the power, similar to the HRC under the Optional Protocol to the ICCPR, to receive (i) reports from States as to their compliance with the Convention under Article 19 and (ii) complaints from individuals against a State under Article 22. However, for the Committee to agree to hear an individual complaint, the relevant State must have made a separate declaration accepting the competence of the Committee.[12] Again then, similar to the ICCPR, there is a combination of macro and micro approaches under the CAT whereby an attempt is made to address both the collective practice of torture and specific individual cases.
Article 20 of the CAT introduces a procedure for investigation of torture which is not found in the ICCPR. Under this procedure, if the Committee receives “reliable information” that torture is being systematically practised in the territory of a party it may undertake a confidential inquiry. In the course of such inquiry, the Committee may undertake “visits” to places where torture may be occurring but only with the consent of the State concerned. Recently however, a compulsory visits procedure along the lines of that provided in the 1987 European Convention for the Prevention of Torture[13] has been drafted which would considerably enhance the effectiveness of the investigative mechanism in the CAT, assuming that it is widely accepted.[14] A system of mandatory visits to alleged places of torture and meetings with victims represents the most far reaching example yet in multilateral prevention and deterrence of torture.
Bearing in mind the significant membership of both the ICCPR and the CAT and the growing adherence to the individual complaint procedures under both instruments, there would seem to be strong international machinery in place for the progressive elimination of torture as a practice and, to a lesser extent, for reparation for individual victims. At the very least, the conventional regime has created fora for the highlighting and investigation of such abuses.
However, on the micro level of providing individual complainants with enforceable remedies for torture the treaty-based procedures have perhaps been less successful, if only because neither the HRC under the Optional Protocol nor the Torture Committee under the CAT has the power to make a binding decision or implement authoritative measures of enforcement against a State. A determination made in favour of an individual may therefore only have symbolic or publicity value, which while possibly useful on the macro level as a means of embarrassing the State into altering its behaviour in the future, may be of little value to the victim who simply desires compensation in the immediate case.
The practice of torture is not only condemned in human rights instruments but also in international humanitarian law, for example under the Geneva Conventions of 1949[15] and Additional Protocols of 1977.[16] These instruments lay down a code of rules to be observed by State parties in both international and non-international armed conflicts. Torture is recognised as a “grave breach” giving rise to an obligation on a State party having custody of an offender to prosecute such person under its own criminal law or extradite him or her to a country willing to prosecute.[17]
There also exist mechanisms under the Geneva Conventions for protecting victims of torture. First, there is the International Committee of the Red Cross (the ICRC), an independent body established to provide protection and assistance for victims of armed conflict. Under the Geneva Conventions, the ICRC has a right of initiative which includes the power to visit prisoners of war and civilian internees.[18] The ICRC also monitors compliance with the Conventions but, because of its strict policy of neutrality, limits itself to notifying one party of breaches alleged by another with a view to encouraging negotiation between the parties.[19]
Secondly and more recently, in 1991, there was established the International Fact Finding Commission. An independent body of 15 experts, the Commission has the task of investigating any incident alleged to be a grave breach or serious violation of the rules of international humanitarian law (which would include torture) within States which have accepted its competence. As of August 1997, 46 States had recognised the competence of the Commission.[20]
So, under humanitarian law, efforts to combat torture have involved recommending the prosecution of offenders, providing relief to victims after the event and some limited provision for investigation of abuses. There is no specific mechanism for providing individuals with redress.
Despite the widespread participation by States in these instruments condemning torture, a further question to be addressed is whether the practice of torture is prohibited as a matter of customary international law. If such a rule of custom existed, then all States would be bound by the prohibition, whether parties to the above conventions or not. Although scholarly opinion is strongly in favour of the view that torture is illegal,[21] State practice should be consulted to verify the position.
The strongest evidence that a customary norm outlawing torture has developed comes from a succession of near unanimous United Nations General Assembly resolutions passed during the years 1973–84 which culminated in the drafting and conclusion of the CAT.[22] What is significant about the resolutions is that they were almost all adopted without a vote and contained strong language condemning the practice of torture as contrary to international law. For example, in the 1975 Declaration On the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,[23] it was stated in Article 2 that torture “shall be condemned as a denial of the purposes of the Charter of the UN” and, in Article 3, that “exceptional circumstances such as public emergency may not be invoked as a justification”.
While the precise role of General Assembly resolutions in customary international law remains unclear, it has been argued that that they may represent a form of collective State practice and/or an indicator of opinio juris on an issue and additionally, a stimulus for the future development of a customary rule.[24] Greater weight will be attached to a resolution (i) which is unanimous or near unanimous and so reflects a consensus of the international community, (ii) the terms of which have been drafted in precise “mandatory” language and (iii) which has been repeated or recited in subsequent resolutions.[25] Applying these principles to the issue of torture, a strong argument could be made that a customary norm prohibiting the practice had emerged by 1985, particularly since the Assembly resolutions acted as a spur for the drafting of the CAT.[26]
However, a problem which arises in asserting that torture is illegal under customary international law, is to account for the fact that some States nevertheless continue to use the practice, despite publicly condemning it. While it is now generally accepted that claims or assertions by States, even in the absence of supporting actions, may nevertheless amount to State practice,[27] a more difficult issue arises where statements by States are not merely unsupported by actions but are contradicted by them. Could the continued use of torture in a significant number of States have prevented the emergence of a customary prohibition?
What is also significant about torture, however, is that States rarely acknowledge its occurrence on their territory and even more rarely admit that it is used as an instrument of government policy. On the contrary, the standard response of States is to reaffirm their opposition to the practice.[28] Hence, it could be argued, the continued use of torture by States amounts to breaches of a customary rule prohibiting the practice, rather than challenges to the rule itself, on the basis that States’ consistent and public repudiation of torture shows a strong “opinio juris as to [the rule’s] normative status”.[29] While a number of States may continue to employ (or tolerate) torture, all States recognise its illegality and it is the public acknowledgment of this which reinforces the customary prohibition.
Statements of the International Court of Justice in the Nicaragua Case[30] provide some support for this view. There, the Court recognised that a customary rule may remain law despite frequent violations, where States justify their acts by reference to exceptions to the rule rather than by contesting the rule itself. In so justifying their acts, the Court reasoned, States are confirming rather than weakening the rule.[31] Applying this reasoning to the context of the rule against torture, although the denials by States as to their use of torture do not amount to justifications by reference to exceptions to the rule, the fact that they do not question the existence of the rule itself reinforces its status.
Assuming that torture is illegal under customary international law, could the prohibition on its use also be considered a norm of jus cogens, that is, a rule accepted by the international community of States as one “from which no derogation is permitted”?[32] Again, there is strong scholarly support in favour of this view,[33] based mainly on provisions in the CAT and the ICCPR which allow for no exceptions to the prohibition on torture, such as public emergency.[34] It may be argued, therefore, that the absolute nature of the conventional prohibitions, when coupled with the near universal opinio juris among States as to the illegality of the practice, may be a sufficient basis for concluding that torture is prohibited as a peremptory norm.
So, apart from the existing treaty-based regime, what other options may exist on the international plane for a victim of torture seeking recovery? Realistically, an individual would have to rely upon the law of State responsibility; that is where the State of nationality takes up a claim against an offending State by exercising its right of “diplomatic protection”. However, in the context of torture, there are many reasons why diplomatic protection is of doubtful value. First of all, the State of nationality is under no obligation to take up the claim of one of its citizens and may choose not to do so for reasons of its own diplomatic relations with the State concerned. Given the sensitivity of the subject matter, this is a realistic prospect. Second and more fundamentally, the right to diplomatic protection is limited to the nationals of a given State and so, where, in the case of torture, the State of nationality may in fact be the perpetrator of the offence, no claim can be made. Thirdly, even if the State of nationality takes up the claim of its injured national, the defendant State may refuse to admit responsibility or provide compensation.
A final point to note about diplomatic protection is that, before a claim can be lodged, there is a further requirement that the plaintiff must exhaust all local remedies in the place of injury. In the context of torture, this is likely to be impractical, since if the defendant State engages in such practices, the prospect of a plaintiff securing relief from its courts is dubious. A victim of torture may therefore seek to argue that the requirement to exhaust local remedies does not apply where there is little likelihood of recovery. This plea has been accepted in international arbitral practice.[35]
Therefore the prospect of an individual victim of torture obtaining redress on the international plane is uncertain and so such persons have begun to explore other alternatives, most notably civil actions against torturer States in the domestic courts of other countries. However a fundamental problem exists in the legal systems of all States to commencing a civil suit against a foreign country: the international law doctrine of State or sovereign immunity. State immunity is a principle of customary international law which provides that, as all States are equal and sovereign, no individual State should exercise its domestic jurisdiction over another. Some countries, particularly developing States in Africa, Asia and Latin America, still observe the principle of “absolute immunity” whereby a foreign State can never be impleaded before another’s courts. Other nations, particularly in Western Europe, North America and Australia embrace the doctrine of “restrictive immunity” whereby a foreign State may, under certain circumstances, be subject to the jurisdiction of another State’s courts.
To complicate the picture, there is no agreement among States which follow the restrictive view as to when immunity should be granted. In some countries, a distinction is drawn between a State’s “sovereign” and its “commercial” acts with immunity only being provided in the case of sovereign activities.[36] The rationale for this distinction is that where a State goes into the marketplace and acts akin to a private, commercial entity it should not enjoy any special dispensation from suit. However, where a State engages in conduct which is more uniquely governmental then it would be an affront to its sovereignty for another country’s courts to adjudicate upon such acts.
The sovereign/commercial distinction, however, has been subject to great criticism, particularly because of the frequent difficulty in establishing under which category a given act should fall.[37] For example, would an action for damages for personal injury, arising from a traffic accident against a foreign State, caused by one of its diplomatic staff, be considered “private” or “sovereign”?[38]
Following criticism of the sovereign/commercial test a number of States opted for a different approach to restrictive immunity. They sought to clarify the principles of State immunity law in legislation, creating a presumption of immunity for a foreign State but then displacing it in certain specific contexts — for example, contracts of employment, commercial transactions, actions for personal injury. Typically, the aim of this legislation was to shift the focus of the immunity injury from abstract discussions about sovereign/commercial activities to a consideration of the territorial nexus between the dispute and the country of adjudication. So, for example, it is provided in the United States Foreign Sovereign Immunities Act of 1976 (FSIA), the United Kingdom State Immunity Act 1978 (SIA) and the Australian Foreign States Immunities Act 1985 (Cth) that a claim for damages for personal injury against a foreign State is admissible where the act causing injury occurred within the forum State. Territorial nexus between a claim and the forum of adjudication is also a feature of other provisions in these codifications. The important point, however, about this State practice is that the determination as to whether a foreign State may be sued or not will largely depend upon the geographical connections of the action to the forum rather than upon any consideration of the nature of the particular claim.
Overall, then, the customary international law position on State immunity remains unclear although it is the opinion of most writers that a form of restrictive immunity is now the standard — whether it be based on the sovereign/ commercial distinction or the codified exceptions which emphasise territorial nexus.
What relevance do the principles of State immunity have in the context of a suit by an individual against a foreign State for damages for injuries suffered as a result of torture? The available State practice on suits against foreign States in domestic courts for human rights violations is scanty and limited almost exclusively to the United States. This poses a methodological problem in itself because generally speaking it is difficult, if not misleading, to construct customary international law rules out of the practice of one State.
Nevertheless, with the aid of scholarly opinion, an attempt will be made to ascertain the position of an individual who seeks to obtain redress for torture in an action against a foreign State in a domestic court.
In considering the American practice the relevant legislation must first be considered. The principal statute is the FSIA which creates a presumption of immunity in section 1603(a) subject to a number of listed exceptions in section 1605(a).
In a significant ruling the US Supreme Court has held that any claim brought against a foreign State in a US court will be barred by immunity unless one of the express exceptions in section 1605(a) is satisfied.[39] The effect of this decision, as will be seen, has been to make it almost impossible for an individual to argue that any “implied” exceptions to sovereign immunity exist.
The exception to immunity in section 1605(a) of particular relevance to torture claims is subsection 5 where compensation is “sought against a foreign State for personal injury or death ... occurring in the United States” (the personal injury exception). The personal injury exception was apparently originally enacted to address the problem of accidents caused by motor vehicles owned by foreign embassies in the US.[40] The American drafters were influenced by European precedent which had held that a claim for damages in such a situation should not be barred by State immunity.[41]
Nevertheless, the wording of the exception is not limited to traffic accidents but extends to any claim for personal injury, although what is required is that the injury occur in the United States. In the context of individuals’ suits against foreign States for torture or other human rights violations it has been this territorial restriction which has proven the greatest obstacle to establishing jurisdiction.[42]
One of the few cases where an individual (or in this case his estate) was able to rely on the personal injury exception to implead a foreign State for human rights violations was the Letelier case.[43] The facts of that case were, however, extreme and unusual in that they involved a political assassination carried out by agents of the Chilean Government in US territory. It had been argued by the Chilean Government that, following the principles of State immunity espoused in European countries, the personal injury exception should only be available to allow suit where the tort was “private or commercial” in nature, not where it involved a sovereign act. The US District Court disagreed with Chile’s argument, saying that the plain words of the legislation drew no such distinction[44] and that there were strong public policy reasons for holding such claims to be actionable in any event, namely that States would be discouraged from entering the territory of other countries and performing outrageous acts.[45]
In a later case, involving allegations of false imprisonment and physical abuse by employees of a Saudi Arabian prince at a Saudi consulate in the US, it was held that where such acts are alleged to have occurred in the United States, a foreign State can claim no immunity.[46]
The US District Court stated that human rights violations “involving serious physical abuse” are “all beyond the scope of legitimate diplomatic operations” and a US court may exercise jurisdiction over a foreign government committing such acts.[47] On this view, then, it is clear that acts of torture performed in the United States by a foreign government would be actionable under the personal injury exception to the FSIA.
However, unfortunately, the reality of torture is that, being a clandestine, largely unadmitted activity, it is rarely practised by a government outside its borders for fear of detection and so the express territorial restriction in section 1605(a)(5) has rendered most acts of torture inadmissible. So, in a number of suits brought against Iran by US nationals held hostage in the US Embassy in Teheran, Iran successfully claimed State immunity on the basis that the tortious acts and injuries were held to have occurred in foreign territory.[48]
Given the stringent territorial requirement of the personal injury exception, it is not surprising that victims of torture have tried to bring themselves within other exceptions to State immunity in the FSIA. One path attempted has been to invoke the “commercial activity” exception. Here, immunity will be denied where the action is based upon (a) “a commercial activity carried on in the US by the foreign [S]tate”, (b) “an act performed in the US in connection with a commercial activity of the foreign [S]tate elsewhere” or (c) “an act outside the territory of the US in connection with a commercial activity of the foreign [S]tate elsewhere and that act causes a direct effect in the US”.[49]
The first attempt to use the commercial activity exception in the context of torture arose in Saudi Arabia v Nelson.[50] In that case an American national brought a claim for breach of his employment contract against the Saudi Arabian government after he had “blown the whistle” on unsafe practices in a Saudi hospital in which he was employed and subsequently suffered unlawful detention and torture by Saudi police. After lower courts allowed his claim, the US Supreme Court reversed it, stating that the basis of his claim was personal injury arising from wrongful arrest, imprisonment and torture by the police and not a breach of his employment contract by the hospital. The Court took the view that, in essence, his complaint was directed at the foreign State’s exercise of its police powers which were peculiarly sovereign in nature and so did not amount to “commercial activity” within the exception.[51]
This decision has been the subject of great criticism, particularly over what appeared to be the basic premise of the Supreme Court’s reasoning — that the commercial activity exception could not be used as a vehicle for the bringing of what are, in substance, human rights claims since such actions inevitably involve a probe into governmental activities.[52] In this regard, the Court noted that, even if it could be shown that the Saudi Government routinely used detention and torture to resolve commercial disputes, the fact remains that the claim would still be for abuse of sovereign powers and so subject to immunity.[53]
This narrow approach to the commercial activity exception has been maintained in a recent claim by Burmese farmers against the SLORC regime of Burma arising out of the construction of a natural gas pipeline in that country.[54] The farmers sought damages for personal injury arising out of violence and intimidation by the SLORC military and police in relocating their villages in order to construct the proposed pipeline. The US District Court acknowledged that construction of the pipeline amounted to a “commercial activity” and that the alleged human rights violations by SLORC were in connection with such activity. However, the Court felt bound to follow the reasoning in Saudi Arabia v Nelson that the claims were essentially for abuses of police power by SLORC and as such peculiarly “sovereign” and so outside the ambit of the commercial activity exception.[55]
It seems, therefore, that the prospects of an individual who suffered torture outside the US successfully invoking the commercial activity exception to immunity are remote.
Another attempt at lifting the veil of State immunity has been to argue that where a foreign State violates human rights norms contained in treaties to which the United States was a party in 1976, a claim against the State may be brought under section 1604 of the FSIA. It has been argued in a number of cases that generic human rights treaties to which the US was a party in 1976, which provide for a right to a remedy before a domestic court, should also fall under the exception in section 1604. For example, Article 8 of the UDHR, Article 2(3)(a) of the ICCPR and Article 14 of the CAT, all require State Parties to provide individuals with a domestic remedy for breaches of the terms of the treaty.
Despite some scholarly support for the argument that such provisions override State immunity,[56] the US Supreme Court has interpreted the “treaty exception” restrictively to apply only to those treaties which create a private right of action to recover compensation against a foreign State in a US court.[57] Status of Forces Agreements were cited as an example; such treaties typically remove State immunity in respect of certain claims brought against a foreign State in relation to the conduct of its armed forces in the forum State. By contrast, provisions such as Article 14 of the CAT were not intended to create rights of action against foreign states in US courts and certainly not for violations occurring outside US territory.[58] More recent decisions, in the context of claims for torture, have confirmed this view.[59]
It is suggested that the conclusion reached in these cases is correct. Although Article 14 of the CAT, for example, requires that each State must provide individuals with a remedy before its domestic courts, there is no evidence that the drafters of any of the human rights instruments above intended by the inclusion of such a provision fundamentally to alter the customary law of State immunity by creating a right of action against a foreign State in another country’s domestic courts where none before existed.
Another attempt to overcome foreign State immunity by the FSIA for acts of torture has been to argue that a foreign sovereign’s violation of human rights norms amounts to an implied waiver of immunity under section 1605(a)(1). This argument has taken two forms. First, it has been suggested by some writers that a State Party impliedly waives its immunity when it becomes a party to a treaty which covers the subject matter of the claim. This argument was emphatically dismissed by the US Supreme Court in Amerada Hess where it said that an implied waiver of immunity to suit could not be deduced from the mere signing of an international agreement, where such agreement made no reference to waiver.[60]
More recently, it was argued that the Philippines Government had waived its immunity to suit in the US, in the context of abuses committed by the Marcos’s, by becoming a party to the Convention Against Torture. The response of the United States Court of Appeals for the 9th Circuit was that, while, as a matter of international law, the Philippines Government had a duty under the Convention to help in the redress of torture committed by the Marcos’s against its own citizens, the terms of the Convention “do not mandate that such redress occur in the United States courts”.[61]
A second version of “implied waiver” was considered in the Siderman case.[62] There, it was stated by the US Court of Appeals for the 9th Circuit that there exists in customary international law a body of peremptory norms from which no derogation is permitted, known as “jus cogens” norms[63] and that the prohibition against torture is one of those principles.[64] The Court also recognised that State immunity was a rule of international law. However, where a conflict exists between a jus cogens norm and another rule of international law, the peremptory principle prevails. As a result it was seriously arguable, in the Court’s view, that State immunity as a principle of international law was overridden by jus cogens.
However, the Court said that whilst such may be the position in terms of international law doctrine, the Supreme Court decision in Amerada Hess made it impossible to argue that jus cogens violations amounted to an implied waiver of immunity for the purposes of the FSIA. The Supreme Court had emphasised in that case that immunity was to be granted to a foreign State even for violations of international law unless one of the express exceptions could be satisfied. The Court in Siderman felt it could not, as a matter of precedent, effectively create an implied exception to State immunity under the FSIA, even though the Court had sympathy with the argument from a purely international law perspective.[65]
In two more recent cases, Princz v Federal Republic of Germany [66] and Smith v Libya,[67] circuit courts also rejected the argument that jus cogens violations amount to an implied waiver of State immunity again according to the basic premise that the judicial function does not extend to rewriting legislation in an area of sensitivity in foreign relations. In Princz, the US Court of Appeals for the District of Columbia Circuit interpreted the implied waiver exception to require a “foreign government’s having at some point indicated its amenability to suit”.[68] In the view of the Court, simply put, a violation of jus cogens does not amount to such an indication.
More fully, in Smith, the US Court of Appeals for the 2nd Circuit reviewed the legislative history on the implied waiver exception and found that it was only intended to encompass a State’s actions in relation to the conduct of litigation.[69] The exception was not intended to cover violations of fundamental norms of international law, even though, arguably in such a situation, State immunity was abrogated as a matter of customary international law.[70]
So, again, like Princz and Siderman, while as a matter of international law, a strong argument may exist that jus cogens violations do trump State immunity, in terms of interpreting the applicable domestic statute on immunity (which the courts are required to do), such a view is not tenable.
Finally, the Court also stressed in Smith that its conclusion in not permitting suit for violations of jus cogens was not a reflection of Congress’s “condonation of such lawless conduct. Congress might well have expected the response to such violations to come from the political branches of the [US G]overnment”.[71] Again, there is an emphasis on the separation of executive and judicial powers and recognition that claims of human rights abuses against foreign States also impact upon US Government policy and so judicial caution is necessary. This judicial concern not to interfere in the executive domain in the area of torture suits against foreign States has only been heightened by the number of cases in which the US Government has filed an amicus brief requesting the Court to decline jurisdiction.[72]
Overall, then, it seems hard to fault the reasoning of the American courts in the face of very clear legislative language in the FSIA that immunity is to be removed only in exceptional circumstances. Whilst the vast majority of United States scholars have attacked the courts’ approach as myopic and inflexible,[73] it must be remembered that in the context of torture claims against foreign States, the courts are being asked to adjudicate upon matters of sensitive foreign relations. The reluctance of the courts to imply exceptions into the FSIA so as to lift the veil of immunity for foreign States can therefore properly be seen as a respect for the proper limits of the judicial function and for the conduct of foreign relations by the executive branch. This approach would be consistent with the “long tradition of judicial caution and abstention in sensitive matters of foreign policy” of American courts.[74]
From an international law perspective, the US practice on State immunity in the context of torture claims can also be seen as justified. While on one view the practice may be portrayed as a reticent judiciary holding back the domestic enforcement of human rights law against rogue foreign States, from another perspective what is revealed is the fact that the judiciary are merely implementing a deliberate policy of the US Government not to remove immunity in this area. Despite constant appeals over many years for amendments to the FSIA to include a “human rights exception”, what ultimately emerged was a masterpiece of executive caution. In June 1996 the Antiterrorism and Death Penalty Act came into force. The Act created a new exception to immunity in the FSIA in an action against a foreign State “for personal injury or death that was caused by an act of torture, extrajudicial killing or provision of material support or resources for such an act”.[75]
However, the scope of this exception is severely narrowed by clauses which provide that a court should decline jurisdiction if (a) a foreign State has not been designated by the Secretary of State as a “[S]tate sponsor of terrorism” and (b), even if the State is so designated, the victim was not a US national when the terrorist act occurred.
Given that the list of “[S]tate sponsors of terrorism” presently includes only Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, and the sad fact that, apart from Iran, no claim has ever been brought against one of these countries for acts of torture, it is likely that most claims for torture will continue to be barred by State immunity.[76]
In a sense, this amendment is very revealing; it is clear that the United States Government does not want its courts to become tribunals for the enforcement of international human rights against foreign States, particularly where its own relations with such State may be harmed. The United States therefore maintains the view that, in the case of the vast majority of claims for torture against foreign States, immunity should continue to prevail. The American judiciary’s cautious instinct was therefore correct all along.[77]
Nevertheless, the prevailing academic view in the United States seems to be by contrast, that the US courts owe a “duty” to the international community to enforce more widely human rights norms.[78] It seems to be forgotten by these writers that the very concept of human rights remains contentious to many nation States who are slowly being persuaded, as noted earlier in the context of torture, to accept international modes of adjudication on such issues. The idea, however, that international human rights norms may be enforced against a foreign State in another State’s courts would remain unacceptable to most countries on the ground that it would represent a massive intrusion into State sovereignty.[79] So, far from the international community looking to the United States to use its courts to promote human rights law enforcement against foreign States, it is more likely that the community would greet such a development with alarm. It is suggested then that the US Government and its courts, by advocating only a partial withdrawal of State immunity, have correctly read the pulse of the international community.
Given the clear wish of the US courts not to create a general exception to State immunity for acts of torture, plaintiffs have recently sought to bring actions against individuals responsible for performing or authorising the acts of torture and such claims have, in general, been held admissible by US courts.[80] The position now is that under the Alien Tort Claims Act 1789 and the Torture Victim Protection Act 1992, a claim for damages may be brought for acts of torture against an individual wherever occurring, provided that the acts were committed by (a) government officials or (b) by private individuals acting under governmental authority (“color of law”).[81]
Although the number of suits under these enactments is increasing, in practice however, this option will remain of limited value to victims of torture in securing redress because of the difficulty of securing personal jurisdiction over the defendant. Because service on the defendant within the US is required, the defendant torturer either must be a resident or visiting the country to be impleaded. The well advised defendant will simply stay away from the US as no doubt many have. However an even more serious problem with this type of claim is that the defendant will often have no attachable assets to satisfy a judgment either because of impecuniosity or due to removal from the jurisdiction prior to the proceeding. The result is that any judgment obtained is worthless, particularly if, in addition, the foreign country in which such assets are held is unwilling to enforce any such judgment. The result then is that in very few suits under the ATCA or the TVPA have judgments awarded been collected.[82] The great exception is the Marcos litigation from which it may be concluded that it perhaps will only be rich dictators in exile who will likely be the successful target of such suits.[83]
A further problem with claims against individual torturers is that such persons may themselves be entitled to claim sovereign immunity. According to a number of recent decisions, it has been held that immunity may be claimed by an individual acting in his or her official capacity,[84] even though the definition of “foreign [S]tate” in the FSIA refers only to “a political subdivision of a foreign State or an agency or instrumentality of a foreign State”, rather than an individual. Since some form of official conduct is required to make torture actionable under the ATCA and the TVPA would not the granting of immunity to an individual then prevent any redress to a victim of torture? It seems that courts have recognised the potential quandary in which this would place individuals and have held that where an individual engages in or authorises torture he or she will be deemed to have exceeded the scope of their official authority and so therefore not be entitled to sovereign immunity.[85] In Gramajo [86] and Cabiri [87] the courts did hint, however, that if a government in question admitted that the acts of torture were “officially authorised” or if the law of such country permitted such practices, it is possible that an individual could then claim sovereign immunity. Such a situation, though probably rare, is not inconceivable.[88]
So, overall, torture suits against individuals are fraught with difficulties and, at best, only achieve a measure of symbolic redress for victims or have the effect of “depriv[ing] a perpetrator of atrocities of safe haven in the United States”.[89]
Apart from a single decision of the English Court of Appeal in 1996 it appears that there is no judicial practice outside the United States on the question of civil suits for torture either against foreign State defendants or individual officials. It is therefore necessary to glean the attitude of other Nation States from their general approach to State immunity. As mentioned earlier, the practice can generally be divided into three groups: (i) those States observing absolute immunity for personal injuries caused by a foreign State, (ii) those States favouring restrictive immunity based on application of the sovereign/commercial distinction and (iii) those States supporting restrictive immunity based on the territorial location of the tortious act causing injury.
Exactly which countries fit into this category is not easy to determine although it is likely that a significant part of the developing world (particularly Asia and Africa and some States in Latin America) as well as possibly some of the former socialist countries in Eastern Europe would be included. However, as is often forgotten, a number of common law countries particularly the US, UK, Canada and Australia observed the doctrine of absolute immunity until the 1970s.
The view of the countries still following the doctrine of absolute immunity on the specific question of whether immunity should be retained for acts of torture is not entirely clear, although it is likely that their general approach of absolute immunity would extend to this area as well. However some light is shed by the comments of a number of members of the International Law Commission (ILC) in their preparation of draft articles on State immunity. After it was proposed by the Special Rapporteur that an exception be included to immunity for torts occurring within the jurisdiction of the forum State, some strong opposition was raised by certain countries’ representatives to the concept of a foreign State being subject to the domestic jurisdiction of another State for its torts in any situation. In the view of these States, it was not desirable as a matter of principle for one State to find another State liable in tort because such determination would trespass on the international law rules of State responsibility. Questions of attribution of individual conduct to a foreign State should not be resolved by domestic tribunals.[90]
Given the support of these countries for resolution of tortious claims against a foreign State under the law of State responsibility, it was obviously assumed by these States that a person who suffers injury at the hands of his or her own State would be left to his or her own rights of action under that State’s domestic law. Needless to say, in the case of torture, such rights are likely to be non-existent.
There was also some discussion by representatives of States favouring absolute immunity to the availability of immunity in human rights claims, in particular in the Letelier situation,[91] where the act causing injury occurred in the forum of suit. A number of representatives suggested that, even if (contrary to their argument) State immunity would not apply for claims for personal injury arising from torts occurring in the forum, immunity should still apply in the case of acts which attracted criminal liability or were themselves breaches of international law.[92] The Special Rapporteur to the ILC appeared to express sympathy with these views at one point.[93] One representative even suggested that it was unnecessary to have a specific lifting of immunity for cases of “murder or terrorism” because “he found it difficult to ... imagine a State pleading sovereign immunity when it was accused [of such acts]”.[94] It may equally be said, however, that it is precisely in the area of human rights abuses that an accused State may wish to plead immunity so as to prevent investigation of such activities.
Nonetheless, it seems likely that the view of the States favouring absolute immunity would be to deny any domestic jurisdiction over human rights violations by a foreign State, whether committed within or outside its territory.
Among States who have not codified their law of State immunity, there has been little practice on the issue of personal injury claims against foreign States generally and none in the area of human rights violations specifically. Countries falling into this category would be those of the European civil law tradition, such as France, Italy, Austria, The Netherlands, Germany and Switzerland. The most common type of personal injury action to have come before these countries’ courts is that resulting from a road or rail accident in the territory of the forum State. With respect to the claims arising out of road or rail accidents in the forum, the judicial practice reveals a significant trend away from immunity particularly in case law from the 1950s onward. The sovereign/private distinction was applied to strip foreign States of immunity where the road or rail carrier was said to be engaged in private or commercial activity.[95]
However, claims for serious assault or killings are conspicuously absent from the European civil law practice. It seems that such matters, even if based on acts occurring in the forum, would not have been adjudicated as civil actions but as criminal prosecutions.[96] Nevertheless, in considering whether to exercise domestic criminal jurisdiction over foreign military personnel, a form of the sovereign/private distinction was in fact applied. It was only if the act was performed in the course of his or her official duties that a foreign soldier would be immune from the local courts.[97]
What relevance does this practice have for torture claims and immunity? It seems that according to the practice of those countries which have not codified the law of State immunity, that the sovereign/commercial test is applied which would mean that only private, insurable claims would be subject to local civil jurisdiction.
Interestingly, the approach of the Inter-American Draft Convention on Jurisdictional Immunity of States[98] supports this view but goes further, excluding recovery for private torts committed outside the forum. In Article 6(e) of this Convention it is provided that “in proceedings for losses and damages or tort liabilities” an exception to immunity would apply only when such losses etc. arose out of “trade or commercial activities undertaken in the State of the forum”.[99] This provision therefore codifies the sovereign/private distinction as well as the restriction on non-immunity to acts within the forum.
Overall, then it would seem that a plea of State immunity would prevail in the case of a claim for torture under the sovereign/private approach, on the basis that such an action would likely to be found to involve an inquiry into the governmental activities of the foreign State.[100]
Apart from the United States, a number of common law countries have enacted legislation on State immunity in the last twenty years. In the context of personal injury all such States have created the same exception to immunity as exists in s 1605(5) of the United States FSIA. For example, the UK State Immunity Act 1978 provides in section 5 that “a [S]tate is not immune as respects proceedings in respect of: (a) death or personal injury ... caused by an act or omission in the United Kingdom”. Almost identical provisions have been enacted in Singapore,[101] South Africa,[102] Canada,[103] and Australia.[104] Pakistan, on the other hand chose not to include personal injury as an exception to immunity in its legislation.[105]
It is generally agreed by commentators that until the enactment of the UK provision, the common law position on immunity for personal injury supported the absolute view.[106]
The main features of this legislation, like that of the United States are first, that it limits the exercise of domestic jurisdiction to tortious acts committed in the forum and, second, that there is no requirement that the foreign States have engaged in private or commercial acts to be denied immunity. Commentators therefore agree that such legislation would permit a claim for personal injury arising out of purely political acts in the forum State such as in the Letelier case.[107]
Recently, however, in England in Al Adsani v Government of Kuwait [108] an attempt has been made to overcome the territorial requirement in the context of a claim against the Kuwaiti Government for compensation arising out of acts of torture in that country. The plaintiff was a dual British/Kuwaiti national who was allegedly interned and beaten in Kuwait after having disseminated embarrassing material about Kuwaiti Government officials. Threats were allegedly made to him over the telephone in England after he escaped there.
The plaintiff conceded that the tort exception to immunity in section 5 of the UK Act did not apply to the physical acts of torture because the tortious act occurred outside England. However he argued that section 1, which lays down the general principle of immunity for foreign States, must be read subject to an implied exception that the State has acted consistently with the rules of international law. Because government sponsored torture violates international law, it was argued, Kuwait should therefore not be entitled to State immunity.
The Court unanimously rejected the argument of the plaintiff. According to the first judgment, given by Stuart Smith LJ, the UK immunity legislation was intended as a “comprehensive code and is not subject to overriding considerations… It is inconceivable … that the draftsman, who must have been well aware of the various international agreements about torture, intended s 1 to be subject to an overriding qualification”. The judge also relied upon the United States decisions in Argentine Republic v Amerada Hess [109] and Siderman v Republic of Argentina,[110] in which it had been held that no implied exceptions to immunity exist in the United States legislation for breaches of international law, human rights or jus cogens and the English judge thought that a similar approach should be taken in interpreting the UK provision. The Filartiga case[111] was distinguished on the basis that it involved no question of State immunity.
Stuart Smith LJ also recognised a strong policy reason why jurisdiction should not be exercised over acts of torture occurring in a foreign jurisdiction. In his view, “the practical consequences of the plaintiff’s submission would be dire”. He noted that in the case of applicants for refugee status who claim to have been tortured in another country there exist experts who are equipped to assess these claims and who are familiar with the background and surrounding circumstances. A local court, by contrast, is in no such position and in the absence of assistance by the foreign State in terms of provision of evidence (which is unlikely since it will probably refuse to submit to the jurisdiction) the tribunal would have no means of assessing the veracity of the claim. It seems, then, that in the view of this judge, local courts are institutionally unsuited to resolving disputes about human rights violations in a foreign country.
Nowhere is this view expressed in the US decisions earlier considered, but the logic is, it is suggested, compelling. In the case of a suit against a foreign State for acts of torture in its territory, a local court is placed in the situation of having to accept the evidence and allegations of a plaintiff with no means of testing his or her account. The danger of persons filing vexatious suits simply to embarrass foreign governments is considerable, particularly given the sensitivity of the subject matter.[112]
The other judge in Al Adsani, Ward LJ, was more sympathetic to the plaintiff’s situation, despite agreeing that the claim could not proceed. This judge noted that the practical effect of not exercising jurisdiction in this case was that “it would have the ironic result that there may be no international forum (other than the forum of the locus delicti to whom a victim of torture will be understandably reluctant to turn) where this terrible ... wrong can receive civil redress”. However notwithstanding this fact and also the judge’s view that when a State violates a jus cogens norm (which would include torture) there is a “powerful” argument that it loses any right to State immunity, Ward LJ agreed that the claim was defeated by the plain words of the domestic legislation.
The judge referred to the English doctrine of statutory construction that Parliament is assumed to have legislated consistently with international law but that where a statute’s plain words departed from these principles then the text must be given effect to. So, even if, as a matter of international law, State immunity did no longer exist for a jus cogens violation, the plain words of section 1 were inconsistent with this view by making it clear that immunity would be conferred unless one of the Act’s express exceptions was satisfied, and a breach of jus cogens was not such an exception. Again there was the implication in the Court’s judgments, which had also been expressed in the US caselaw, that, given the absence of clear language accepting suits against foreign States for torture, it must be concluded that this is not the wish of either the Parliament or the UK Government. This is not therefore a case of mere legislative inadvertence which the principles of international law can be used to rectify.
Finally, the Court rejected the plaintiff’s alternative argument that he had suffered personal injury due to telephone threats made in England against him by Kuwaiti Government officials. Although the Court considered that such “governmental” acts, if proven, could come within the tort exception in section 5, the plaintiff had failed to show on the balance of probabilities that the threats were in fact made by government agents.
However, what is interesting about this discussion is that it confirms that English courts will take a view similar to the US courts in the Letelier case;[113] that is, the availability of the tort exception will not be premised on any distinction between sovereign and private or commercial acts. If, therefore, acts of torture have been committed in the forum which are attributable to a foreign State, a plaintiff will be entitled to sue.
Given the fact that the Australian Foreign States Immunities Act contains provisions identical to both sections 1[114] and 5[115] of the UK legislation, it is likely that a similar result to that in Al Adsani would be reached by an Australian court. Australian courts also follow the English approach of only allowing international law principles to govern the interpretation of a domestic statute where its wording is ambiguous. So, where the words of an enactment clearly depart from international law principles, the text must be applied.[116] It therefore seems unlikely that an Australian court would be prepared to recognise an implied exception to immunity for jus cogens violations in the Australian Act.
The work of the ILC on its draft articles with respect to State immunity was concluded in 1991 with the presentation of the articles to the UN General Assembly. Two of the draft articles ultimately adopted by the Commission are of relevance to the issue of State immunity in the context of torture claims.
Article 6 had originally provided that the general rule of immunity for States would be subject to “relevant rules of international law”. The idea behind inclusion of this clause was to maintain flexibility in the draft articles so that they could be interpreted to accommodate future developments in international law. Although no representative of the ILC specifically referred to human rights violations in a foreign State’s territory as being a contemplated “future development” in which the rule of immunity may subsequently be removed, that remained a possibility while the reference to “rules of international law” remained.
However it was decided by the ILC to delete the reference to rules of international law on the basis that the only exceptions to immunity in the Draft Articles should be those expressly provided. By making immunity subject to the rules of international law it was thought by some representatives to open the way for the unilateral creation of implied exceptions to immunity by individual States. As such, the ILC’s objective in codification of the rules of immunity would be thwarted. The Special Rapporteur agreed with these arguments and so the phrase was removed.[117]
The other provision in the ILC Draft Articles of relevance to torture claims against States is Article 13 which, in substance, creates an exception to immunity for personal injury where the tortious act occurred in the forum State. In the ILC’s deliberations, there was some concern among States that this provision would create a conflict with the rules of State responsibility and that it would be inappropriate for States to determine questions of attribution of acts of individuals to other States. Some representatives were also concerned that Article 13 made no distinction between “sovereign” and “private” acts, as was found in the practice of a number of countries.
Ultimately, despite expressing the view that the provision was principally intended to cover traffic accidents and “insurable risks” (which would have left out governmental acts), in the event, the final version of the article drew no distinction between private and governmental acts and followed the US and Commonwealth model. In the commentary to the provision, the Special Rapporteur referred to the Letelier case[118] with approval which would suggest that acts of torture occurring within the forum would be admissible. However, in the commentary it was also emphasised that the territorial restriction would be maintained for reasons of both private and public international law. It was there stated that “a [S]tate foreign to where the tort was committed would be considered a forum non conveniens” both in terms of the location of evidence and the law to be applied.[119] Additionally, concerns of excessive intrusion into the sovereignty of States by too wide a removal of immunity were expressed as a reason for maintaining the territorial restriction.[120]
Finally, it is also worth noting that the Institute of International Law, in its resolution on State immunity adopted in 1991, determined that a foreign State should lose its immunity before another State’s courts where it committed an act within the territory of that other State causing personal injury.[121] In the words of one of the members, this provision was specifically “designed to deal with Letelier type cases”[122] and so, presumably, would also cover cases of torture committed in the place of adjudication.
Finally, it is necessary to consider the arguments for and against the lifting of State immunity in the context of suits arising out of torture. Obviously, the most fundamental argument in favour of lifting State immunity for torture claims is that it would provide redress to a wider range of victims than currently is the case. It has to be admitted that the existing treaty regime (both in the areas of human rights and humanitarian law) has concentrated on the elimination of torture as a practice and has only given limited recognition to the rights of individuals to redress. Problems of enforcement have also made it difficult for victims to recover. Hence, any further measures, such as domestic civil actions, which may provide the only realistic means of recovery, should be welcomed. This is certainly the view of most American[123] as well as some European[124] commentators.
Deterrence has also been cited by a number of US writers as a reason for removing State immunity for torture, in the sense that a State may hesitate before committing such acts on the assumption that it may be sued in another jurisdiction. This argument seems unconvincing given the enormous practical difficulties that will face a prospective plaintiff suing in a foreign country, not the least of which will be escaping the place of torture. It is unlikely that the creation of a right to sue, by itself, will have any realistic effect on the practice of torture as a whole. In fact, it may even have the reverse effect that, while certain countries may have been previously content to allow their dissidents to leave, they may now choose to kill them to prevent their exercising their new found rights to sue. Political dissidents may therefore, ironically, be put at a greater risk by the lifting of State immunity for torture claims.
Another argument which has been raised in favour of creating a human rights exception to immunity is that the doctrine of State immunity is itself in an evolutionary state and can accommodate new developments. Just as the recognition of private or commercial acts as an exception to immunity was controversial in its time, it is to be expected that the creation of further exceptions will be similarly contentious, particularly in an area as sensitive as human rights. The argument in favour of an evolutionary approach to State immunity which should now encompass breaches such as torture is said to be supported by a number of developments in other branches of international law. For example, it would seem now well established that the doctrine of universal jurisdiction extends to acts of torture. That is, States are entitled to prosecute individuals under their own law for torture wherever it may have occurred, on the basis that the offence is of harm to the international community as a whole.[125]
However, the argument that State immunity has “evolved” into recognising an exception for torture perhaps fails to take into account the unique sensitivity of the subject matter. Many developing States were not so reluctant to accept a loss of immunity for commercial acts because it was in their interest; they wanted to do business with foreign corporations and saw losing immunity as the quid pro quo. There would be no perceived countervailing advantage to loss of immunity for developing countries in the human rights context.
Moreover, there are a number of strong arguments against recognising an exception to immunity for torture, which, it must be said, have not been given great attention in the literature. First, it is a fact that no State in its current practice supports or is likely to support a removal of immunity in the context of suits for torture. It seems that accepting the prohibition of torture as a matter of treaty obligation is contentious enough for a nation State but allowing another State’s courts to apply such principles to its conduct in its own territory goes too far. Such an extension would be felt by many States to infringe substantially the doctrine of the sovereign equality of States and the norm of non-intervention, particularly since the subject matter of torture claims is likely to be extremely politically sensitive for the defendant State.[126]
Second, it may be argued that it is inappropriate for domestic courts to become general tribunals for the enforcement of international human rights norms with respect to acts occurring in the territory of another country. There are great logistical problems as was noted in the Al Adsani case:[127] in the absence of cooperation from the government of the country in which the acts occurred, a court in another jurisdiction is in no position to test the veracity of the competing evidence and claims. Scope therefore exists for plaintiffs to bring vexatious suits, designed solely to embarrass the country concerned.[128]
Related to this issue is the vast expansion in the jurisdiction of municipal courts which has taken place in a number of developed countries, particularly the United States, in recent years. Increasingly liberal rules for the establishment of jurisdiction and discovery have been created, at least partly with the aim of enticing would be plaintiffs to litigate there, even where the actions have no connection with the United States.[129] Such litigation marketing, or inducement to “forum shop”, fosters the impression in the minds of developing countries that calls to lift immunity have a domestic economic motivation or worse, “partisan political ends”[130] rather than being due to any concern for the protection of foreign citizens’ human rights.
A third objection to removing State immunity in the context of claims for torture is that the existing treaty regime on the subject, which is built upon multilateral and transnational modes of enforcement, may be harmed. It seems arguable that while States are being slowly persuaded to accept international adjudication of such sensitive matters, this process will be set back if individual countries begin unilaterally to exercise jurisdiction over other States’ conduct.[131] The courts of such countries will not be perceived as neutral but as highly politicised forums of dispute resolution, particularly in those countries where the independence of the local judiciary is not an accepted principle.[132] The consequence of increased domestic adjudication of human rights matters involving foreign States is likely to be retaliation towards the countries asserting such jurisdiction and greater hostility towards human rights in general. In such a sensitive area, therefore, the maintenance of avenues for discourse and interaction between States must be kept open to increase the scope for influence and suasion and it is these objectives which lie at the heart of the existing international mechanisms to eliminate torture as a practice.[133]
Overall it is suggested that, by working toward the strengthening of transnational methods of adjudication, such as through the HRC under the Optional Protocol to the ICCPR and the draft optional protocol to the CAT, greater progress will be achieved in eliminating torture as a practice and civil suits in domestic courts, while possibly providing redress to individual victims, can only impede this objective.
[*] Lecturer in Law, Monash University. The author wishes to thank the Hon Justice Sir Kenneth Keith and Professor DW Greig for their kind comments and suggestions.
[1] Amnesty International, Torture in the Eighties (1984) p 28.
[2] Ibid, p 3.
[3] Universal Declaration of Human Rights, GA Res 217 A (III) UN Doc A1810 at 71 (1948).
[4] International Covenant on Civil and Political Rights (1966) 999 UNTS 171.
[5] Optional Protocol to the International Covenant on Civil and Political Rights, 999 UNTS 171.
[6] See the determinations of the HRC cited in McGoldrick D, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1991) p 369.
[7] EQ and AQ v Uruguay, UN Doc A/38/40 at 216.
[8] McGoldrick, n 6 above, p 381.
[9] As of March 1997, see http://www.un.org/Depts/Treaty/final/ts2/newsfiles/part_boo/iv_boo/iv_5.html. Australia became a party to the ICCPR in 1980 and the Optional Protocol in 1991.
[10] United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, 1465 UNTS 85; also reprinted in (1984) ILM 1027.
[11] As of March 1997, see http://www.un.org/Depts/Treaty/final/ts2/newsfiles/part_boo/iv_boo/iv_9.html. Australia became a party to the CAT in 1989 and enacted a number of its provisions into domestic law in the Crimes (Torture) Act 1988 (Cth).
[12] As of August 1997, 41 States had accepted the competence of the Committee to hear individual claims, including Australia in 1993; (statistics from Australian Department of Foreign Affairs and Trade). The majority of claims so far heard by the Committee have involved persons seeking asylum who have argued that return to their place of origin would expose them to the risk of torture; see, for example, Mutombo v Switzerland (1994) 1(3) IHRR 122.
[13] European Convention for the Prevention of Torture (1987) Europ TS No 126.
[14] In the Draft Optional Protocol to the CAT it is proposed that a “Sub-Committee Against Torture” be created, having the power to visit periodically and on an ad hoc basis any place of detention in a State Party and to conduct meetings with persons deprived of their liberty. The Sub-Committee would have the power to make its findings public should a State Party fail to cooperate to implement the Sub-Committee’s recommendations or if the party otherwise permits torture to continue. See Report of the Working Group on the Draft Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc E/CN.4/1996/WG.11/CRP.1, para 18.
[15] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva 1) 75 UNTS 31; Geneva Convention for the Amelioration of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (Geneva 2); Geneva Convention Relative to the Treatment of Prisoners of War (Geneva 3) 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva 4) 75 UNTS 287.
[16] Protocol I Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3; Protocol II Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609. As of June 1997, 188 States were party to the Geneva Conventions and 147 and 139 respectively to Additional Protocols I and II; (statistics from Australian Red Cross). Australia became a party to the Conventions in 1957 and the Protocols in 1991.
[17] See for example Articles 49–50 of Geneva Convention I.
[18] Wolfrum R, “Enforcement of International Humanitarian Law” in Fleck D ed, The Handbook of Humanitarian Law in Armed Conflicts (1995) p 547.
[19] Ibid, p 548.
[20] Including Australia in 1992; (statistics from Australian Department of Foreign Affairs and Trade.)
[21] Schachter O, International Law In Theory and Practice (1991) p 338; Higgins R, Problems and Process: International Law and How We Use It (1994) p 22; Burgers J and Danelius H, The United Nations Convention Against Torture: A Handbook (1988) p 12; American Law Institute, Restatement of the Law, Third, Foreign Relations Law of the United States (1987) s702(d).
[22] See Resolutions 3059 (XXVIII) (1973) UN Doc A/Res/3059 (XXVIII); 3218 (XXIX) (1974) UN Doc A/Res/3218 (XXIX); 3452 (XXX) UN Doc A/Res/3452 (XXX); and 3453 (XXX) (1975) UN Doc A/Res/ 3453 (XXX); 32/62 (1977) UN Doc A/Res/32/62 (in which the UN Commission on Human Rights was requested to draw up a draft convention) and 39/46 (1984) UN Doc A/Res/39/46 (in which the draft convention was opened for signature). Resolutions 3452 (XXX) 3453 (XXX) and 32/62 are extracted in Appendix 2, 3 and 4 respectively, of Burgers and Danelius, Ibid, pp 191–6.
[23] The Declaration was adopted by the General Assembly in Resolution 3452, above.
[24] Sloan B, “General Assembly Resolutions Revisited” (1987) 58 British Yearbook of International Law 39 at 70–4.
[25] Ibid, at 128–132, citing the opinion of Tanaka J in the South West Africa, Second Phase, Judgment, ICJ Rep 1966, p 6 at 292.
[26] There also exists a consistent body of judicial practice in the United States supporting the view that torture is a prohibited norm of customary international law starting with the Second Circuit case of Filartiga v Pena-Irala [1980] USCA2 576; 630 F 2d 876 (CA2 1980) (2d Cir 1980). For a fuller discussion of the United States decisions on torture see section IV. United States Practice below, this volume p 106.
[27] Akehurst M, “Custom As a Source of International Law” (1974–5) 47 British Yearbook of International Law 1 at 2–3.
[28] Amnesty International, n 1 above, pp 90–93.
[29] Higgins, n 21 above, p 22.
[30] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) Merits, Judgment, ICJ Rep 1986, p 14; (hereafter referred to as the Nicaragua case).
[31] Ibid, at 98.
[32] See Article 53 of the Vienna Convention On the Law of Treaties 1969, 1155 UNTS 331; 8 ILM 679.
[33] Hannikainen L, Peremptory Norms (Jus Cogens) In International Law (1988) p 508; O’Boyle M, “Torture and Emergency Powers Under the European Convention On Human Rights: Ireland v the United Kingdom ” (1977) 71 American Journal of International Law 674 at 686–688; Burgers and Danelius, n 21 above, p 12; American Law Institute, n 21 above, comment (n) to s 702(d).
[34] See, for example Article 2(2) of the CAT which provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture”. See also, to like effect, Article 4(2) of the ICCPR.
[35] See the Robert E Brown Case (US v GB) (1923) 6 RIAA 120 at 129.
[36] In particular European countries of the civil law tradition such as Belgium and Italy, see Badr G, State Immunity: An Analytical and Prognostic View (1984) ch 2.
[37] See especially, Brownlie I, Principles of Public International Law, 4th ed (1990) p 333; and Crawford J, “A New Foreign State Immunities Act for Australia?” [1978] AUYrBkIntLaw 3; (1983) 8 Aust YBIL 71 at 90.
[38] See discussion at nn 95 –97, 100 below and accompanying text.
[39] Argentine Republic v Amerada Hess Shipping Corp [1989] USSC 11; 488 US 428 at 439 (1989).
[40] Trooboff P, “Foreign State Immunity: Emerging Consensus on Principles” (1986) 200 Recueil Des Cours 235 at 352.
[41] For example, Holubek v US (1961) 40 ILR 73 (Supreme Court of Austria).
[42] Schreuer C, State Immunity: Some Recent Developments (1988) pp 51–52. The precise reasons for the territorial limitation would seem to lie in both private and public international law. Under generally accepted principles of private international law, it is the country in which the wrong occurred which is considered the most appropriate forum of adjudication for torts; ibid, p 53. The bulk of the evidence would normally be located there and, assuming that its domestic law were to be applied to the case (which again is likely on most choice of law tests) its courts would be better equipped to do so. These considerations would seem to apply a fortiori where the State is not only the place of the wrong but also is the defendant in the action. As a matter of public international law, the doctrines of the sovereign equality of States and non-intervention in other States’ affairs continue to exercise a powerful hold in the international community and are represented in a number of provisions of the United Nations Charter, for example, Article 2(7). Such principles serve to reinforce the doctrine of State immunity and limit the emergence of wide exceptions.
[43] De Letelier v Republic of Chile, 488 F Supp 665 (DDC 1980).
[44] Ibid, at 671.
[45] Ibid, at 673.
[46] Alicog v Saudi Arabia, 860 F Supp 379 (SD Tex 1994).
[47] Ibid, at 384. In this case the plaintiffs’ claims failed due to a lack of evidence.
[48] See for example, McKeel v Islamic Republic of Iran, 722 F 2d 583 (9th Cir 1983).
[49] Section 1605(a)(2).
[50] [1993] USSC 33; 113 S Ct 1471 (1993).
[51] Ibid, at 1480.
[52] See, for example, Gergen J, “Human Rights and the Foreign Sovereign Immunities Act” (1996) 36 Virginia Journal of International Law 765 at 774.
[53] Saudi Arabia v Nelson, n 50 above, at 1480.
[54] John Doe v UNOCAL Corp, 963 F Supp 880 (CD Cal 1997).
[55] Ibid, at 887–88.
[56] See, for example, Paust J, “Draft Brief Concerning Claims to Foreign Sovereign Immunity and Human Rights: Non-Immunity for Violations of International Law under the FSIA” (1985) 8 Houston Journal of International Law 49 at 66.
[57] Argentine Republic v Amerada Hess, n 39 above, at 441–442.
[58] Gergen, n 52 above, at 778 fn 90. It is interesting to note that in the case of the United States’ ratification of the CAT, the Senate expressly attached an understanding to Article 14 that a contracting State was only required to provide a private right of action for acts of torture committed within its territory; see Gery Y, “The Torture Victim Protection Act: Raising Issues of Legitimacy” (1993) 26 George Washington Journal of International Law & Economics 597 at 608, fn 84.
[59] For example, in Siderman De Blake v Republic of Argentina [1992] USCA9 1398; 965 F 2d 699 at 719–720 (9th Cir 1992) where it was held that Article 8 of the UNDHR did not create a private right of action in US courts against a foreign State. See also Denegri v Chile unreported, 6 April 1992 (DDC).
[60] Argentine Republic v Amerada Hess, n 39 above, at 442–443.
[61] In Re Estate of Ferdinand Marcos, [1996] USCA9 2749; 94 F 3d 539 at 548 (9th Cir 1996).
[63] Ibid, at 714–717.
[64] See the discussion above at nn 32 –34 above and accompanying text. [65] In the Siderman case an implied waiver of immunity was nevertheless found where Argentina had commenced criminal proceedings against the Siderman family in its own courts and then requested a Californian court to serve process upon the family. The US Court of Appeals for the 9th Circuit took the view that because Argentina had sought to involve the US courts “in the very course of activity for which the Sidermans seek redress” this amounted to an implied waiver; see n 59 above, at 722. More recently, in another phase of the Marcos litigation, it was held that the Philippines Government had not waived its immunity to suit in a claim arising out of acts of torture by Marcos where the Government had brought a separate action in the US courts to recover assets held by the former President. The Court said that, for there to be an implied waiver, there had to be a direct connection between the foreign State’s activities in the US courts and the plaintiff’s claims for relief. Here the Government’s separate suit was unrelated to the claim for torture. See Estate of Ferdinand Marcos, n 61 above, at 547. [66] [1994] USCADC 292; 26 F 3d 1166 (DC Cir 1994).
[67] [1997] USCA2 106; 101 F 3d 239 (2nd Cir 1996).
[68] Princz v Germany, n 66 above, at 1174.
[69] Smith v Libya, n 67 above, at 243.
[70] Ibid, at 244.
[71] Smith v Libya, n 67 above, at 244.
[72] Most significantly, the US State Department intervened in support of Saudi Arabia in the Nelson case, see n 50 above.
[73] See, for example, Correale J, “The Torture Victim Protection Act: A Vital Contribution to International Human Rights Enforcement or Just A Nice Gesture?” (1994) 6 Pace International Law Review 197; Haffke C, “The Torture Victim Protection Act: More Symbol than Substance” (1994) 43 Emory Law Journal 1467, esp at 1494–1501; Lininger T, “Recent Development: Overcoming Immunity Defences to Human Rights Suits In US Courts” (1994) 7 Harvard Human Rights Journal 177; Fitzpatrick J, “The Future of the ATCA of 1789: Lessons From In Re Marcos Human Rights Litigation” (1993) 67 St John’s Law Review 491; Reimann M, “A Human Rights Exception to Sovereign Immunity: Some Thoughts On Princz v Federal Republic of Germany” (1995) 16 Michigan Journal of International Law 403; Bederman D, “Dead Man’s Hand: Reshuffling Foreign Sovereign Immunities in US Human Rights Litigation” (1995–96) 25 Georgia Journal of International and Comparative Law 255; Rabkin J, “Universal Justice: the Role of Federal Courts in International Civil Litigation” (1995) 95 Columbia Law Review 2120 and Paust, n 56 above. Among the few dissenters may be cited Zimmerman A, “Sovereign Immunity and Violations of Jus Cogens: Some Critical Remarks” (1995) 16 Michigan Journal of International Law 433 and Gery, n 58 above.
[74] Schreuer, n 42 above, p 60.
[75] Section 1605(a)(7).
[76] This is certainly the view of scholars; see, for example, MacKusick D, “Comment: Human Rights Versus Sovereign Rights: The State-Sponsored Terrorism Exception in the Foreign Sovereign Immunities Act” (1996) 10 Emory International Law Review 741 at 769–771. Section 1605(a)(7) has been recently applied to defeat an immunity plea in an action for extrajudicial killing, see Flatow v Iran unreported, 11 March 1998 (DDC).
[77] It is interesting to note that in the Smith case the US Court of Appeals for the 2nd Circuit relied in part upon the recent amendment to reject the argument that breaches of jus cogens norms should amount to a waiver of State immunity on the basis that such a conclusion did not accord with Congressional intent; n 67 above, at 242.
[78] See especially, the views of Reimann, n 73 above, at 422 and Rabkin, n 73 above, at 2147. [79] Note Article 2(7) of the United Nations Charter. [80] See Filartiga v Pena-Irala, n 26 above.
[81] See Kadic v Karadzic, [1996] USCA2 16; 70 F 3d 232 at 245 (2nd Cir 1995).
[82] Weintraub R, “International Law: Establishing Incredible Events By Credible Evidence: Civil Suits for Atrocities that Violate International Law” (1996) 62 Brooklyn Law Review 753 at 765.
[83] Haffke, n 73 above, at 1490.
[84] Trajano v Marcos, [1992] USCA9 3140; 978 F 2d 493 at 497 (9th Cir 1992); Hilao v Marcos, [1994] USCA9 1938; 25 F 3d 1467 at 1472 (9th Cir 1994); and Cabiri v Baffour Assasie-Gyimah 921 F Supp 1189 at 1197 (SDNY 1996).
[85] Hilao, n 84 above at 1472; Cabiri, n 84 above at 1197; Xuncax v Gramajo 886 F Supp 162 at 175 (D Mass 1995). The problem of State immunity was circumvented in Trajano v Marcos in a rather less satisfactory way. There, the Court determined that because the defendant, Marcos-Manotoc, had been the subject of a default judgment in the lower court in the instant matter, the US Court of Appeals for the 9th Circuit was able to draw the inference that she acted on her own authority, not on that of the Philippines Government. Therefore, her acts cannot have been taken “within any official mandate”; Trajano v Marcos, n 84 above at 498. The obvious riposte to this (which was not addressed by the Court) is that if the defendant acted only on her own authority, how could she then have acted “under color of law” for the purposes of a suit under the ATCA?
[88] Occasionally, plaintiffs have been fortunate in that a new regime in the foreign country in which the acts of torture have occurred has come to power and promptly waived any State immunity claimed by the individual sued. Such a waiver occurred in Paul v Avril, 812 F Supp 207 (SD Fla 1993) and Mushikiwabo v Barayagwiza unreported, 9 April 1996 (SDNY) but this is unlikely to be a common circumstance.
[89] Weintraub, n 82 above, at 765.
[90] See the views of ILC members Koroma, Calero-Rodrigues and Ni in Yearbook of the International Law Commission 1983, vol I, pp 83–85. See also the views of national representatives from Brazil, Bulgaria, Chile, China, Czechoslovakia, GDR and the USSR in Yearbook of the International Law Commission 1988, vol II (1) pp 58–59, 62, 64–65, 69, 83. Other examples of countries which have indicated that they do not accept the restrictive theory include: Colombia, Ecuador, Hungary, Poland, Syria, Trinidad and Tobago and Venezuela, see United Nations Materials on Jurisdictional Immunities of States and their Property (1982) pp 79, 90, 567, 576, 601, 605, 611, 638.
[92] See the views of ILC members Jagota and Ushakov, 1 Yearbook of the International Law Commission 1983, vol I, pp 95–96.
[93] See Yearbook of the International Law Commission 1983, vol I, p 97.
[94] Koroma, n 90 above, at 83.
[95] See, for example, In Re Danish State Railways in Germany (1953) 20 ILR 178 and Red Nacional de Ferrocariles Espanoles v Mrs Cavaille (1984) 65 ILR 41.
[96] Fox H, “State Responsibility and Tort Proceedings Against A Foreign State In Municipal Courts” (1989) XX Netherlands Yearbook of International Law 3 at 18–19.
[97] Ibid.
[98] Inter-American Draft Convention on Jurisdictional Immunity of States (1983) 22 ILM 292.
[99] Ibid, Article 5.
[100] It has, however, been argued that certain gross breaches of human rights (eg political assassination) should not be classified as “governmental” activities because they are not “proper to or distinctive of” a State. That is, such conduct can hardly be claimed to be “proper” authorised activity when it (almost certainly) violates the domestic law of all countries and international law nor “distinctive” of government, where private groups also perform such acts. See Crawford, n 37 above, at 89. On such a view, torture could be classified as a “private” activity (in terms of the sovereign/commercial test) and so not giving rise to immunity.
[101] State Immunity Act 1979, s 7.
[102] Foreign Sovereign Immunity Act 1981, s 6.
[103] State Immunity Act 1982, s 6.
[104] Foreign States Immunities Act 1985 (Cth) s 13.
[105] State Immunity Ordinance 1981.
[106] Sucharitkul S, Yearbook of the International Law Commission 1983, vol II (1) p 43.
[107] Fox, n 96 above, at 29; Australian Law Reform Commission, Report No 24, Foreign State Immunity (1984) p 69; Lewis C, State and Diplomatic Immunity (1990) p 53; Crawford, n 37 above, at 88.
[108] Unreported, 12 March 1996, Eng CA.
[112] This point was not appreciated by one commentator who criticised the Court’s upholding of immunity in Al Adsani on the basis that, since English law allowed criminal jurisdiction to be exercised over individuals committing acts of torture outside the UK (pursuant to the Criminal Justice Act 1988) then why could not civil jurisdiction be exercised over the State responsible for such acts? (See Marks S, “Torture and the Jurisdictional Immunity of Foreign States” [1997] Cambridge Law Journal 8 at 10.) However, as the United States practice shows, there is a great difference, in terms of intrusion upon a foreign State’s sovereignty, between a domestic court exercising jurisdiction (whether civil or criminal) over an individual offender from that State and a court doing so over the State itself.
[114] Section 9 (general immunity from jurisdiction).
[115] Section 13 (personal injury exception).
[116] Yager v R [1977] HCA 10; (1977) 139 CLR 28.
[117] See Yearbook of the International Law Commission 1991, vol II (2) p 23.
[119] See Yearbook of the International Law Commission 1991, vol II (2) p 44. Under the Anglo-American doctrine of forum non conveniens, a local court has a discretion to stay proceedings where there exists a foreign court more appropriately situated to try the action. See Gulf Oil Corp v Gilbert [1947] USSC 45; 330 US 501 (US Sup Ct 1947) and Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL). The doctrine does not therefore act to exclude totally the jurisdiction of the local court. The principle does not exist in civilian legal systems. In Australia, the doctrine of forum non conveniens has been rejected and replaced by the “clearly inappropriate forum” test; see Voth v Manildra Flour Mills [1990] HCA 55; (1990) 171 CLR 538 (HCA). Pursuant to this approach, an Australian court may only grant a stay of its proceedings in favour of trial in a foreign court where the defendant can show that the local court is “clearly inappropriate” to try the action. The effect of the “clearly inappropriate” test has been to make it more difficult for defendants to obtain a stay (see Nygh P, Conflict of Laws in Australia (1995) pp 106–7) which raises the interesting question of whether an Australian court may be more likely (than its English or American counterparts) to exercise jurisdiction over a foreign act of torture, assuming any immunity obstacle was overcome.
[120] See Yearbook of the International Law Commission 1991, vol II (2) p 44.
[121] Article 2(e) in (1991) 64 (II) Annuaire de l’ Institut de Droit International 267.
[122] (1987) 62 (II) Annuaire de l’Institut de Droit International 269 (per Sir Ian Sinclair).
[123] Especially Paust, n 56 above and the writers cited at n 73 above.
[124] For example, Bianchi A, “Denying State Immunity to Violators of Human Rights” (1994) 46 Austrian Journal of Public and International Law 195.
[125] The CAT includes such a provision in Article 5(2).
[126] One writer has argued that “the rationale behind the law of sovereign immunity requires that some reasonably close connection should exist between the forum [S]tate and the cause of action” and that, in the context of a tort claim against a foreign State, a domestic court’s assuming jurisdiction only where the tort occurred in its territory achieves a reasonable balance between the interest of the individual in seeking redress and the interest of the State in protecting its sovereignty; see Crawford, n 37 above, at 92. This is a statement of the territorial view of State immunity which, as noted above, is currently the prevailing position in most common law countries.
[128] This “floodgates” danger was recognised by Trooboff, n 40 above, at 360–361. Crawford has also stated that, in his view, “it is not for the courts of any one country to become general human rights courts” in Proceedings of the 65th Conference of the International Law Association (1992) p 319.
[129] See, for example, Hartford Fire Insurance Co v California [1993] USSC 100; 125 L Ed 2d 612 (US Sup Ct 1993) and the recent debate surrounding the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 (more commonly known as the Helms-Burton Act) in (1996) 90 American Journal of International Law 419–440.
[130] Schreuer, n 42 above, p 60.
[131] Hassan F, “A Conflict of Philosophies: The Filartiga Jurisprudence” (1983) 32 International and Comparative Law Quarterly 250 at 257.
[132] “Whilst Western societies see the national courts as a champion of private rights not all countries acknowledge that role and in some the status of the courts would hardly justify any such expectation ...”; Fox H, “Private Law Damages As a Method of State Accountability: The Tort Exception to State Immunity” [1993] Third World Legal Studies 107 at 118. Schreuer argues that “a more realistic role for domestic courts in the area of human rights protection might be to assume jurisdiction in cases where an international body of supervision has determined authoritatively that a violation has occurred”; see n 42
above, at 60. However, it is likely that, even in this situation, Nation States will fear partial treatment, given the politically charged subject matter.
[133] It has also been argued, on a more theoretical level, that it is inappropriate for treaty obligations entered into between States on the international plane to be enforced by individuals domestically because such obligations do not neatly transpose into private rights and domestic courts lack the legal standards by which to judge the conduct of other Nation States; see Fox, Ibid, at 111–113, 118.
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